Unclear If Same Sex Marriage Court Decision Applies To Am. Samoa

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Off-island expert: Territory ‘ought to allow’ marriage equality

By Fili Sagapolutele

PAGO PAGO, American Samoa (The Samoa News, July 7, 2015) – While it's unclear as to whether the U.S. Supreme Court decision on same sex marriage applies to American Samoa, Columbia University Professor Suzanne B. Goldberg with the Columbia School of Law in New York says American Samoa ought to allow same sex marriage equality for all residents.

The highest court in the land issued its ruling more than a week ago and the territory’s Attorney General Talauega Eleasalo Alo confirmed last week that his office is reviewing the opinion and its potential applicability to American Samoa.

Samoa News reached out to a handful of off-island civil rights attorneys and legal experts asking whether the Supreme Court decision applies to American Samoa, an unincorporated and unorganized territory, with no federal court system.

One of the two who responded to Samoa News inquiries included Goldberg, who is also the director of the Columbia Law School’s Center for Gender & Sexuality Law as well as the Sexuality and Gender Law Clinic.

"American Samoa, like the other U.S. Territories, ought to allow marriage equality for all residents and end marriage discrimination against same-sex couples," Goldberg told Samoa News over the weekend. "At this point, it is not clear that the Supreme Court’s decision applies directly."

However, she said a pending federal appeals court case seeks to insure American citizenship rights, which now include same-sex couples' right to marry, for American Samoans.

(The American citizenship rights case referred to by Goldberg is led by local resident Tuaua in the citizenship law suit, in which attorneys for the plaintiffs have said that they intend to ask for a full panel of judges in the federal appeals court in Washington D.C. to review the decision of the three-judge panel of that court, which upheld earlier last month the lower court’s decision that persons born in American Samoa are not entitled to automatic U.S. citizenship.)

Samoa News then asked — if the Supreme Court decision does not apply to American Samoa— "do you think it’s possible that someone in the future might challenge territorial law, which states that the local Office of Vital Statistics is authorized to issue marriage licenses — but does say that such a license is for marriage between a woman and a man?"

"At this point, with all fifty states and four U.S. territories granting marriage equality to same-sex couples, it is time for American Samoa to do the same," she said. "The change can happen by a lawsuit but elected officials could also take this essential action toward equality."

While there is no law banning gay marriage in American Samoa, there was a move in 2003 to clarify the current law, through legislation passed by the local House of Representatives, requiring that a valid marriage contract could only be constituted "between a man and a woman", effectively preventing same sex marriage.

However, the legislation was automatically defeated later in the year when the Senate opted to table the bill without taking any action, following testimony by the territory’s attorney general at the time, who told senators "if it’s not broken, don’t fix it."

As of late yesterday morning, the local Office of Vital Statistics says that they have not received any request for a same-sex couple marriage license.

Responding to Samoa News inquiries, Michael F. Williams, a partner in the Washington D.C. based law firm of Kirkland & Ellis LLP with an active civil rights litigation practice, says "it is an open question whether the Supreme Court's marriage equality ruling extends to American Samoa, but I think the courts would hold that American Samoa must allow same-sex marriages."

"There is a long line of Supreme Court precedent holding that certain fundamental rights are enforceable even in unincorporated territories of the United States" he said, adding that Supreme Court Justice Anthony Kennedy's opinion in Obergfell vs. Hodges indicates that marriage equality would qualify as one of these rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

"It is important to note that this precedent applies only to the civil recognition of marriage," Williams pointed out. "Justice Kennedy's opinion does not require religious recognition of same-sex marriages and actually calls for respect toward the views of those who have moral or religious disagreement with same-sex marriage."

Williams, who represented ASG and Congresswoman Aumua Amata in the Tuaua citizenship lawsuit case in the District Court and Appeals Court in Washington D.C., served as a law clerk to Justice Kennedy during the 2002 term of the Supreme Court.

During that term, Justice Kennedy authored Lawrence v. Texas, which is widely viewed as the landmark gay-rights decision that laid the groundwork for this year's marriage-equality ruling, according to Williams.

Meanwhile, Columbia Law School says that on the heels of the Supreme Court same sex decision, many conservatives have called for allowing public officials to refuse to issue marriage licenses to same-sex couples if doing so would offend their religious beliefs.

Its Public Rights/Private Conscience Project has issued an analysis of the turn to religious liberty to justify non-compliance with the Obergefell decision, according to a news release last week.

"The arguments advanced by the advocates of these proposals on First Amendment grounds clearly misstate the law," said Professor Katherine Franke, faculty director of the Public Rights/Private Conscience Project.

"The First Amendment’s protections for religious liberty do not permit a public employee to pick and choose which duties he or she will perform based upon their religious or other convictions," she said in the news release.

According to the release, Texas Attorney General Ken Paxton, Louisiana Gov. Bobby Jindal, the North Carolina Legislature, and other public officials have insisted that justices of the peace, magistrates, and judges can refuse to perform a public duty as part of a larger rejection of the Supreme Court’s ruling in Obergefell.

Samoa News has found that the gay community in American Samoa are for same-sex marriage, and welcomed the Supreme Court ruling. However, they did not support it being done in the territory, with one gay woman saying she and her partner were going to get married — but off-island, in the U.S. (see story in Friday, July 3, 2015 issue) Cultural sensitivity was cited as one of the reasons.

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